Citation Nr: 1337267	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  12-25 318	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for hypertension, claimed as due to herbicide exposure.

2.  Entitlement to service connection for a respiratory disability, to include bronchitis and atopic rhinitis, claimed as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


ATTORNEY FOR THE BOARD

Chris Miller, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1964 to October 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this virtual file were reviewed in conjunction with this appeal.

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

A chronic respiratory disability, to include bronchitis and atopic rhinitis, did not have its clinical onset in service and is not otherwise related to active duty.  


CONCLUSION OF LAW

Chronic respiratory disability, to include bronchitis and atopic rhinitis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§  1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Procedural Duties

Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating the claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

A. Duty to Notify

VA satisfied its duty to notify the Veteran in the development of his claim.

Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  These requirements apply to all elements of a claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  Proper notice must be provided prior to the initial unfavorable decision.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).  

In this case, an August 2009 letter notified the Veteran of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman.  This was prior to the initial adjudication of the Veteran's claim in December 2009.  This letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  As such, VA satisfied its duty to notify the Veteran.


B. Duty to Assist

VA has also satisfied its duty to assist the Veteran in the development of his claim.  

First, VA satisfied its duty to seek relevant records.  VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and to provide a medical examination or opinion when required.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  All identified, available VA and non-VA records have been obtained and considered.  There is no indication or argument that any pertinent medical records remain outstanding.  

Secondly, VA satisfied its duty obtain a medical opinion.  The Veteran was afforded a VA examination in January 2012, and there is no argument or indication that the report or opinion is inadequate for adjudication purposes.  Thus, the medical evidence is sufficient.

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159.  

II. Analysis

The Veteran is seeking service connection for a respiratory disability.  

When determining service connection, all theories of entitlement-direct, presumptive and secondary-must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  

The Veteran has submitted private medical records from Dr. E.L., which show diagnoses of atopic rhinitis in April 2009 and November 2007; sinusitis in June 2007; and bronchitis in December 2006.  At his January 2012 VA examination, the Veteran was diagnosed with atopic rhinitis, and also reported a diagnosis of bronchitis in 1995 or 1996.  Accordingly, the Veteran has current disability.  

In September 1966, the Veteran's service treatment records (STRS) show that he received treatment for early bronchitis and cold and cough.  The Veteran has therefore demonstrated an incident in service.

However, the evidence does not show a nexus between current respiratory disability and the upper respiratory infections in service.  

First, the Board notes that the Veteran's in-service bronchitis and cold were acute.  There is no evidence of chronic bronchitis or other upper respiratory infections in service.  The post-service bronchitis reported by the Veteran appears to be of recent onset and not the manifestation of a previous chronic disability.  In the December 2006 treatment record provided by the Veteran, for example, he noted that he had developed his bronchitis symptomology over the past week.  

Further, in May 2012 correspondence, the Veteran stated that his respiratory problems began in 1995, when he was hospitalized for a collapsed lung.  The January 2012 VA examination properly noted the Veteran's 1995 collapsed lung in the medical history portion of the examination.  There is no evidence linking his collapsed lung in 1995 to his acute bronchitis in service. 

The Board finally notes that the Veteran asserts on his September 2012 VA Form 9 that he has had severe breathing problems since he left service, with his collapsed lung occurring in 1995.  The Veteran is competent to report such symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, the Board does not find him credible on continuity of symptomology, inasmuch as his statements are not consistent.  The Veteran previously indicated in May 2012 correspondence that his respiratory problems began in 1995.  In his application for compensation received in July 2009, he claimed respiratory problems since August 1980.  His separation examination revealed normal lungs and chest and in his Report of Medical History at service discharge, he denied having or having had asthma, shortness of breath, and/or chronic cough.  

Accordingly, the Veteran cannot demonstrate a nexus between his in-service acute bronchitis, and his current respiratory problems.  He is not entitled to service connection on a direct basis.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).  For such veterans with service in the Republic of Vietnam, service connection due to herbicide exposure will be presumed for the diseases recognized under 38 C.F.R. § 3.309(e).  

The Veteran's service in the Republic of Vietnam is noted on his DD-214.  However, the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for respiratory disabilities other than cancer.  It was specifically indicated that the National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of non-cancerous respiratory disabilities.  See Notice, 75 Fed. Reg. 32540, 32548 (2010).  As the Veteran's respiratory disabilities are not recognized under 38 C.F.R. § 3.309(e), he is not entitled to seek presumptive service connection under this provision.  38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309.

In summary, the evidence does not establish that the Veteran's respiratory disability, to include atopic rhinitis and bronchitis, was incurred or aggravated during his military service.  The preponderance of the evidence is against service connection this disability on a direct or presumptive basis.  As such, the benefit of the doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The claim must be denied.


ORDER

Entitlement to service connection for a respiratory disability is denied.


REMAND

The RO issued a rating decision denying service connection for hypertension in April 2012, and the Veteran timely filed a notice of disagreement (NOD) in May 2012.  However, the statement of the case (SOC) issued by the RO in July 2012 only addressed the Veteran's respiratory disability claim, and not the Veteran's hypertension claim.  As a timely NOD as to the Veteran's hypertension claim has been received, and the Veteran has not otherwise withdrawn the issues in writing, the Board is required to remand this issue for the issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Issue a SOC to the Veteran and his representative as to the issue of entitlement to service connection for hypertension.  Only if a timely substantive appeal is received as to this issue should it be referred to the Board for appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs